Here are the definitions of two key terms, “oral communication” and “intercept”:

“oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation [18 U.S.C. 2510(2)]

“intercept” means the aural or other acquisition of the contents of any . . . oral communication through the use of any electronic, mechanical, or other device [18 U.S.C. 2510(4)]

The basic idea is to criminalize listening in on someone’s private conversation using a recording device. The law applies both to the government and to private parties, and it provides for both criminal and civil remedies. On the whole, it’s a sensible criminal and civil law.

But is it constitutional? Does Congress have the power to broadly prohibit the use of bugging devices? I don’t think it does. In this post I’ll explain why.

It’s helpful to start in a somewhat unusual place, with the legislative history. It’s helpful because it shows that the drafters of this provision knew perfectly well that they were on constitutional thin ice with this law. Here’s the remarkable discussion from the 1968 Senate Report:

The broad prohibition of [18 U.S.C. 2511(1)(a)] is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign communications network, and the extent of the constitutional power of Congress

A little over a year has passed since the Supreme Court’s momentous decision in NFIB v. Sebelius. Not surprisingly, there is still no consensus on what the Court got right, what it got wrong, and what the long term significance of the case will be. But several interesting books about the case have just been published or are forthcoming in the next few months. And I suspect there are many VC readers who might be interested in some or all of them. Here are my thoughts on them.

I. Josh Blackman, Unprecedented.

For readers who want a blow-by-blow account of the litigation and its history, you can’t beat Josh Blackman’s Unprecedented: The Constitutional Challenge to Obamacare. Blackman – a law professor at South Texas College of Law and prominent legal blogger -interviewed over 100 participants in the case on both sides, and he does a great job of explaining each side’s legal, political, and public relations strategy. The book also does a good job of presenting most of the key legal arguments in a form accessible to nonexperts.

I do have some quibbles with the book. For example, I think that Blackman pays too little attention to the Necessary and Proper Clause issues in the case, which scholars as varied as Andrew Koppelman (discussed below), co-blogger Orin Kerr, and myself all believed was the federal government’s strongest argument. Chief Justice Roberts’ conclusion that the individual mandate was not “proper,” even if it was “necessary” may be one of the most significant aspects of the Supreme Court’s decision. In addition, while Blackman’s account is a useful corrective to claims that Solicitor General Donald Verrilli badly botched the case for the government, I think he goes too far in portraying him as a brilliant legal strategist who foresaw […]

Simon Lazarus of the liberal Constitutional Accountability Center is correct to point out that the Supreme Court’s decisions have trended in a somewhat libertarian direction over the last year. I also agree with many of co-blogger Randy Barnett’s explanations for why this has happened. In addition to the cases cited by Lazarus, it’s also worth noting that the recently concluded Supreme Court term saw important victories for property rights in the Koontz and Horne cases.

At the same time, however, Randy is correct to point out that Lazarus’ case is overstated. For example, Lazarus exaggerates when he writes that last year’s Obamacare decision “came close” to “accept[ing] libertarian conservatives’ invitation to junk the ‘New Deal settlement’ that bars constitutional interference with regulatory and safety net legislation.” Even if the challengers had prevailed on every point at issue in that case, Congress would still have sweeping authority to regulate virtually any “economic activity,” and state governments would have even greater regulatory authority than that. Similarly, Lazarus exaggerates when he contends that cases like the DC Circuit decision restricting the presidents’ power to make “recess” appointments are part of an agenda of “doctrinal resets aimed at crippling federal regulatory power.” Even if conservatives and libertarians prevail in every single one of the cases he mentions, the federal government would still retain massive regulatory authority over almost every aspect of the economy and society. Obviously, it’s possible to characterize any decision to strike down or limit “regulatory legislation” on structural grounds as “junking the New Deal settlement.” But that’s like saying that any decision enforcing even modest constitutional limits on law enforcement amounts to junking the criminal justice system.

It’s also worth noting that many of the Court’s recent “libertarian” decisions rely on swing votes cast by Justice Anthony Kennedy. He does […]

Politico has a story about Marco Rubio’s attempted sponsorship of federal anti-abortion legislation. Apparently the bill is being delayed, however, by a dispute about federal power to regulate abortion:

Rubio and 27 other Republican senators signed onto a bill from Sen. Tom Coburn (R-Okla.) in 2011 that would require lawmakers to point to which piece of the Constitution allows government expansion — and he said adherence to that idea is causing the slowdown, not cold feet. Rubio said “certainly” the Constitution would allow a federal law banning abortions after 20 weeks — it’s just a question of which portion of the document.

The story doesn’t say what constitutional powers are in play or what the nature of the dispute is. My guess, though, is that some senators want to invoke the Commerce Clause, which seemed to be the assumed source of federal power for the partial-birth abortion statute; others who take a conservative view of the Commerce Clause probably want to take the more radical position of justifying it under Section 5 of the Fourteenth Amendment, as legislation enforcing the due process or equal-protection rights of fetuses. That’s just speculation, though. […]

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.

The majority opinion is about statutory interpretation. Justice Thomas joined the majority opinion, and also wrote a concurrence. His concurrence explained that the doctrine of constitutional avoidance was the reason that he joined the majority on statutory interpretation, thus finding that South Carolina’s adoption laws had not been preempted by the Indian Child Welfare Act. As Justice Thomas’s concurrence points out, the Constitution grants Congress the power “To regulate Commerce…with the Indian tribes.” Some persons have over-read the Indian Commerce Clause as a grant to Congress of plenary authority over anything involving Indians. Justice Thomas points out the error: the Indian Commerce Clause is about commercial relations with tribes. It is a not a grant of plenary congressional power over every Indian anywhere in the United States. Thus, Congress has no constitutional power to displace state adoption laws simply because a child has a drop of Indian blood.

Today it is taken for granted that Congress’s power “to regulate . . . Commerce among the several States” includes the power to shut interstate markets down. That is why, for example, Congress is understood to have the power to ban the possession and use of marijuana, even though twenty states have expressed contrary preferences, either for the medicinal or recreational use of the drug. This Article argues that as a matter of constitutional history and theory both, this familiar assumption about congressional power is wrong. First, the Article demonstrates that the original understanding, which prevailed for over one hundred years, did not grant Congress the power to ban markets. Congress could pass “helper” statutes to facilitate state choices, and it could even ban particular goods (such as diseased cattle) “in service” of the interstate market; but it could not simply prohibit all commerce in products of which it disapproved. Second, the Article demonstrates that although this understanding changed following the 1903 Supreme Court decision in Champion v. Ames, none of the reasons supporting the change justify Congress possessing the power today. Finally, this Article examines theoretical justifications for congressional power grounded in law and economics and constitutional theory to suggest that the power “to regulate” interstate commerce should not be understood to include the power to prohibit it. The argument has implications for national bans on articles and activities such as interstate gambling, drugs, raw milk products and assault weapons.

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce…among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes […]

The Liberty Law Blog recently posted my review of Harvard Law Professor Einer Elhauge’s book Obamacare on Trial, which was possibly the first academic book on the Obamacare litigation published by a legal scholar since the Supreme Court issued its decision in NFIB v. Sebelius. Elhauge is a topnotch scholar, and his book makes some interesting points in defense of the constitutionality of the individual health insurance mandate. But it’s not as strong as it could have been had he been able to address some key issues in greater depth:

Harvard Law Professor Einer Elhauge’s book Obamacare on Trial is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions….

Elhauge’s most distinctive contribution to the debate over the mandate was his repeated invocation of two 1790s laws that, he argues, provide precedents for upholding the individual mandate as an exercise of the commerce power: The 1792 Milita Act, which required militia members to possess muskets and other military equipment; and the 1798 Act for the Relief of Disabled and Sick Seamen, which required owners of American ships arriving from foreign ports to a withhold a part of their seamen’s wages and pay the money into a government-administered fund for the “temporary relief of sick and disabled seamen….”

This is an interesting thesis and Elhauge defends it well. But, ultimately, it flounders on the many clear differences between the two 1790s acts

I would invited them to consider an aspect of the question that has long interested me:
What is the relationship between the Offenses Power, the Treaty Power, and the Foreign Commerce power? All three might overlap at their edges (assuming they are not entirely congruent), and the extent of the overlap would say a lot about the extent of the other powers. If for example, the Foreign Commerce power is even broader than the Interstate one, then the scope of the treaty power becomes even less important.

Hamilton, as I’ve mentioned before saw the Treaty Power as in some ways ways being not coterminous with the Foreign Commerce power, and my understanding of the Offenses Power has always been that it was distinct from the Treaty Power. An example of how such delimitations might matter would be whether the courts can consider, as they sometimes do, unratified treaties in determining the “Law of Nations.”

Michael Greve’s The Upside-Down Constitution is one of the most important works on constitutional federalism in years. It is the best exposition to date of the idea that the American Constitution establishes a federal system primarily devoted to promoting competition between state governments. It is also probably the most comprehensive critique of the traditional view that federalism is really about promoting the interests of state governments. As Greve recognizes, state governments rarely want to compete, often preferring to establish cartels among themselves.

Greve praises the original Constitution for creating an effective system of interstate competition and the nineteenth and early twentieth century Supreme Court for enforcing it. But he warns that the system has broken down over the last eighty years, replacing competition with cartels and what he considers to be dysfunctional empowerment of state governments. He argues that American federalism has now reached a crisis point from which we must either restore some of its earlier, more competitive, structure, or face a decline similar to those that have beset several other federal systems

In Part I, I describe Greve’s argument, focusing especially on the ways in which it enhances our understanding of the history of constitutional federalism. Part II addresses a potential internal contradiction in Greve’s position. While he emphasizes the need for the judiciary to enforce a competitive regime and recognizes that the federal government often has incentives to promote cartelization, he endorses a broad interpretation of congressional authority under the Commerce Clause and the Spending Clause which effectively gives Congress a blank check to suppress competition in ways he deplores.

While in the military, Kebodeaux had consensual sex with a fifteen-year-old when he was twenty-one and was sentenced in 1999 to three months in prison. He fully served that sentence, and the federal government severed all ties with him. He was no longer in federal custody, in the military, under any sort of supervised release or parole, or in any other special relationship with the federal government when Congress enacted a statute that, as interpreted by the Attorney General, required Kebodeaux to register as a sex offender. When he failed to update his state registration within three days of moving from San Antonio to El Paso, he was convicted under 18 U.S.C. § 2250(a) (also enacted in 2006) and sentenced to a year and a day in prison….

Absent some jurisdictional hook not present here, Congress has no Article I power to require a former federal sex offender to register an intrastate change of address after he has served his sentence and has already been unconditionally released from prison and the military…. We do not call into question Congress’s ability to impose conditions on a prisoner’s release from custody, including requirements that sex offenders register intrastate changes of address after release. After the federal government has unconditionally let a person free, however, the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution. Some other jurisdictional ground, such as interstate travel, is required.

This finding of unconstitutionality therefore does not affect the registration requirements for (1) any federal sex offender who was in prison or on supervised release when the statute was enacted in 2006 or (2) any federal sex offender convicted since then. Instead, it

Much literal and blogospheric ink has already been spilled over the question of whether the Court’s conclusion that the Commerce Clause does not authorize the individual mandate is part of the holding or mere dictum. I think, however, that there is a fairly simple solution to the problem: Just look at what the Court itself said the holding was. In Part III-C of Chief Justice Roberts’ opinion, which is a part of the opinion of the Court joined by the four liberal justices, Roberts writes: “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we ab­stain from the regulated activity.” The fact that the four liberals joined this part of the opinion suggests that they recognize that the Chief Justice’s reasoning about the Commerce Clause is part of the holding, even though they don’t agree with it. Perhaps they joined this part because they realize that this conclusion did in fact enjoy the support of five justices (Roberts and the four conservative dissenters). In any event, it seems to me that the official Opinion of the Court is the best possible authority on what is and is not part of the holding.

It is not completely clear whether this statement is meant to cover the Commerce Clause as augmented by the Necessary and Proper Clause, as well as the former alone. But given the reasoning of the rest of Roberts’ opinion (which covers both), I think the former interpretation is more likely.

I should add that I owe this point to co-blogger Jonathan Adler, who could not post it himself right now, and therefore authorized me to do it.

There are also other reasons for concluding that the Commerce Clause reasoning is part of the holding as well. John Elwood […]

Georgetown law professor Neal Katyal is a highly respected liberal constitutional law scholar. He also argued several of the individual mandate cases for the Obama administration in the lower courts. In this recent New York Times op ed, he suggests that the result may well have been a “Pyrrhic victory” for federal power:

The obvious victor in the Supreme Court’s health care decision was President Obama, who risked vast amounts of political capital to pass the Affordable Care Act….

But there was a subtle loser too, and that is the federal government. By opening new avenues for the courts to rewrite the law, the federal government may have won the battle but lost the war….

The health care decision also contains the seeds for a potential restructuring of federal-state relations. For example, until now, it had been understood that when the federal government gave money to a state in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform.

In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds….

This was the first significant loss for the federal government’s spending power in decades….

Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce.

Obviously, Katyal and I disagree on the merits of the two cases. For example, I think he is wrong to suggest that “until now, it had been understood that when the federal government […]

As I pointed out yesterday, five justices, including Chief Justice Roberts, accepted all the plaintiffs’ major arguments against the individual mandate with respect to the Commerce and Necessary and Proper Clauses. But how much does that conclusion actually matter? My tentative view is that it will have little immediate effect, but may well be significant in the future.

One possible reason to dismiss the importance of the Court’s treatment of these issues is that it might have been mere dictum. After all, the Court upheld the mandate based on the Tax Clause, so the other two issues were not essential to the outcome. However, as co-blogger Jonathan Adler points out, Chief Justice Roberts’ controlling opinion explicitly holds that this analysis was essential to the outcome:

[T]hese analyses form an essential predicate to his ultimate conclusion that the mandate could be upheld as a tax. As the entire Court accepts, the most natural reading of the minimum coverage provision is as an economic mandate adopted pursuant to the Commerce Clause. It is only after rejecting the possibility that the mandate could be justified in this manner that the Chief returns to the text to see if it is susceptible to an alternative construction. Thus, the only reason the Chief Justice even considers whether the mandate could be considered a tax, the statutory text notwithstanding, is because of his prior conclusion on the Commerce and Necessary and Proper Clauses. Thus this decision provides five firm votes for meaningful limits on the most expansive of Congress’ powers.

One can still argue that the Commerce and Necessary and Proper analysis was dictum on the grounds that it was not seen as essential by the other four justices who voted to uphold the mandate. But to the extent that the Chief Justice’s […]